Tuesday

A chance to allow the Legislature to drastically cut Florida’s prison population might be knocked off the November ballot, depending on how the Florida Supreme Court rules.

The ballot initiative, Amendment 11, has three portions: it would repeal xenophobic language from the Florida Constitution; it would repeal obsolete language; and it would make a highly technical change to the Legislature’s power over criminal sentences.

But a lawsuit brought by former state Supreme Court Justice Harry Anstead may have halted the amendment. He argued the amendment violates voters' First Amendment rights by bundling three unrelated issues and argued that the initiative is misleading by saying it “removes discriminatory language related to real property rights” rather than explaining what exactly was repealed.

Last week, Tallahassee Circuit Judge Karen Gievers ruled that the bundling was unconstitutional and that the ballot summary was misleading. The Florida Supreme Court will review the ruling. The appeal means Gievers' decision has been stayed in the meantime. The amendment will stay on the ballot unless the court rules otherwise.

So far, the Supreme Court doesn’t seem to be buying the argument that amendments can’t bundle unrelated issues, but the highest court is assessing whether amendments are misleading.

It’s unclear if the court will rule in enough time for supervisors of elections to exclude the initiative on ballots sent overseas by Sept. 22. The state Supreme Court asked that the final written arguments be filed no later than Sept. 24.

The most substantial portion of the proposal would repeal much of what’s called the “savings clause,” an 1880s-era section of the constitution that prohibits the Legislature from changing criminal sentences after someone has been convicted. Changing the Legislature's powers would require a constitutional amendment.

Already, the Legislature has tried to reform some mandatory minimums — in one case inspired by a Jacksonville woman who faced mandatory minimum sentences of 60 years in prison for firing a gun in the direction of her abusive husband, legislators said judges should have discretion — but those reforms couldn’t help those already sentenced under the old laws.

In a state where the prison population remains near its all-time high despite nine years of falling inmate admissions, reducing sentence lengths are the primary way the number of inmates can decline.

Last week, when the American Civil Liberties Union released a plan for Florida to cut its incarceration levels by 50 percent by 2025, the plan was dependent on the ability to reduce inmates’ sentences. Without Amendment 11, there are alternative ways to try to reduce sentences such as re-instating parole or allowing inmates to earn more gain-time for good behavior, but it’s unclear if the courts would allow those reforms. The Urban Institute researchers who worked alongside the ACLU said that without the savings clause repeal, it would be much harder to imagine the state managing to cut its prison population in half.

“I’m disappointed in her ruling,” said state Sen. Darryl Rouson, a Democrat from St. Petersburg who authored the savings clause repeal as part of the Constitution Revision Commission. “It was really a significant anchor piece to criminal justice reform to allow the Legislature in its discretion to correct an injustice. Having said that, hasn’t Judge Gievers been reversed a lot lately?”

Already the state Supreme Court has reversed Gievers twice after she took amendments off the ballot.

Gievers' order said this initiative was “deceptive and misleading” because of the portion that would repeal the state’s alien land law. The ballot summary doesn’t explain, she said, that the amendment “removes the power of the legislature to regulate or prohibit ‘ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship.’ ”

The term “immigrants ineligible for citizenship” is commonly understood as coded language used in the early 1900s to bar Asian immigrants from having equal rights. So-called alien land laws were common across the country until the United States Supreme Court ruled against California’s in 1948. Since then, there’s no evidence that Florida enforced its version of the law.

According to Asian-American legal groups, Florida is the last state to still have an alien land law. "It is purely symbolic because the laws really cannot be enforced anymore," said Brian Niiya, content director at Densho, a Seattle-based nonprofit focused on telling the stories of Japanese-American internment. "But it is important in erasing this long legacy of anti-Japanese and anti-Asian discriminatory legislation."

Former Justice Anstead’s attorney, Joseph Little, said Anstead’s opposition to the amendment isn’t about its content but about the practice of bundling unrelated topics together. “The legal points don’t have to do with the merits of any of the proposals,” said Little. “They have to do with the nature of the proposal and the voters' right not to be misled. That is the approach of my client in this regard.”

The Constitution Revision Commission meets every 20 years to propose amendments to the state constitution. This was its third time putting together initiatives, but in the two previous times, the commission frequently bundled unrelated issues into amendments. Twenty years ago, for example, one amendment was actually called “Miscellaneous Matters and Technical Revisions,” and it had eight separate themes.

Sandy D’Alemberte, who chaired the first ever commission 40 years ago and is a former president of the American Bar Association and Florida State University, said he doesn’t think bundling is unconstitutional, but misleading language is.

“My view is that although I dislike bundling, I dislike what they’ve done, I’d like to see it come off the ballot, I don’t think the bundling argument is the strongest argument against these amendments,” he said, adding that he thinks the amendment may be “misleading” for not explaining more thoroughly what it was changing. “What a mess this whole thing has been.”

While the alien-land law isn’t currently enforced, the savings clause is.

State Sen. Jeff Brandes, a St. Petersburg Republican who has been a leading voice calling for reform of the criminal justice system, said he and Rouson would work together to get a repeal of the savings clause on the ballot in 2020 if this initiative is taken off the ballot. “The savings clause is a substantive provision that is a challenge for people to understand.”

"In Florida, if significant declines are the goal, you cannot ignore" the importance of cutting sentence length, said Leah Sakala, a policy associate in the Justice Policy Center at the Urban Institute.

D’Alemberte agreed changing the savings clause would be the most progressive reform to Florida’s criminal justice system since the establishment of public defenders to represent poor defendants.

Florida is the only state in which the constitution explicitly forbids amendments to past criminal sentences, according to a staff analysis of the initiative by the Constitution Revision Commission. The analysis gave an example that if a defendant committed certain drug offenses on June 30, 2014, he or she would serve five times longer in prison as a defendant who committed that same offense one day later.

Jacksonville Public Defender Charlie Cofer said that “many times there are unintended consequences to legislation, so I don’t see a problem with the Legislature being given the ability to cure those unintended consequences.”

“There’s a lot of confusion about the savings clause and what it would accomplish,” said Raymer Maguire, the ACLU of Florida’s criminal justice manager. He said it’s been frustrating to see some progressive groups misunderstand how important the change would be. “Before 2025, we will have the savings clause repealed.”

Andrew Pantazi: (904) 359-4310

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